Complainant

Respondent

Anonymised Parties

Employee

Publicly Funded Statutory Organisation

Representatives

Denis Keane Forsa

Aisling McDevitt

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00040681-001

29/10/2020

The employee applied for a temporary post and on merit was placed number 23 on the recruitment panel.  The offer of employment was subject to the successful completion of an initial training programme.  The employee successfully completed the training and she was employed on a temporary 18 month contract.  In 2020 several full-time vacancies occurred and were offered, based on seniority, that is the stating date of employment, to temporary employees.  This employee claims she should have been offered a full-time position based on her place on the recruitment panel for temporary posts.  She commenced a second fixed-term contract of employment with the employer on 02 November 2020.  She works a 37 hour week and her gross fortnightly pay is €1560.79.  The employee referred her dispute to the Workplace Relations Commission on 29 October 2020.

The employer is a statutory organisation principally funded by and responsible to the Department of Transport.  While individual policies are agreed between the employer and the union in many cases the terms and conditions of employment follow those in the civil and public sector, e.g. pay and annual leave for this group of employees are set at the same level as Executive Officers in the civil service.

In 2018 the employer ran a competition to recruit temporary staff.  The employee applied and was placed number 23 on the recruitment panel.  She received a letter of offer dated 25 July 2018 which included the following statement “In addition this offer will also be subject to successful completion of the initial training programme …  (the employer) are proposing to commence its training programme on 10th September 2018 for a 7 week period.  It is likely a number of programmes will be delivered across identified regions and dates will be confirmed with candidates in August.”

The employer did not start successful candidates on the training programme in sequential order from the recruitment panel.  This resulted in a candidate who was placed lower on the recruitment panel than the employee commencing training before her.  The candidate who was placed number 33 on the recruitment panel completed training before the employee and consequently commenced employment before her.  Later, when permanent vacancies arose, candidate number 33 was given a permanent full-time contract, based on seniority in employment.  It is custom and practice in the employer organisation that service/seniority date starts once an employee has completed their training.

Due to the decision of the employer not to follow the order of merit of the recruitment panel the employee has suffered the following loss:

·       She commenced employment in November instead of October 2018.

·       A candidate lower down the order of merit on the recruitment panel obtained a permanent full-time contract based on date their service commenced, after training.

·       The employee’s initial contract of employment ended on 01 May 2020.  She was offered and accepted, a second fixed-term contract starting on 02 November 2020.  She was not employed by the employer between May and November 2020 while a candidate who had been placed lower than her on the initial recruitment panel remained in employment throughout that period, based on seniority of starting date.

Conclusion

Due to the employer’s decision not to follow the order of merit the employee has lost out in the three ways listed above.  The employee is seeking:

1.       An acknowledgement that the employer should have used the order of merit to decide starting dates.

2.       Recompense for the loss suffered as a result of not using the order of merit.

This dispute relates to the employer’s use of seniority (i.e. service) to determine which temporary staff members received further offers of employment.  The employer submits that its actions were reasonable in the circumstances.

The employer is a statutory organisation which operates 52 bases across the country.

The employee was employed on an 18-month fixed-term contract which commenced on 05 November 2018 and ended on 02 May 2020.  She is currently employed on a second fixed-term contract which commenced in November 2020.

Background

The employer is a publicly funded entity.  Its recruitment and headcount are overseen by the Department of Transport.  The employer is required to adhere to the Department’s directions on headcount.  In 2018 the employer received sanction from the Department to recruit 67 temporary staff on 12-18 month fixed-term contracts.

The employer commenced a recruitment campaign and established a panel of potential temporary employees, based on merit.  There were approximately one hundred candidates on the panel.  The initial offers were made to the first 67 people on the panel beginning at number one. Offers of employment were made subject to the successful completion of the initial training programme.  The training programme takes 7 weeks. 

As there were so many new recruits across the country the employer arranged training programmes by location.  New recruits were then invited to attend a training programme close to their home base.   The employee commenced training on 05 November 2018.  This was the last of 8 training programmes run by the employer for the 67 new recruits.

In 2020 several permanent posts became available due to retirements.  The posts were filled by employees who had been recruited on fixed-term contracts based on seniority, that is the date they commenced service.  The method of selection in offering the permanent posts was fair, transparent and consistently applied.  Permanent contracts were offered based on the length of service of the temporary fixed-term employees.  The employee’s service commenced on 05 November 2018.  The other employee, to which she refers, commenced employment on 24 September 2018.

The employee was offered a fixed-term contract based on merit.  Her contract was for an 18-month period.  Due to the Covid-19 Pandemic the service was suspended from 13 March 2020.  The employee’s 18-month contract expired on 01 May 2020.  The employer was not able to extend any fixed-term contract in May 2020 as the service was still suspended at that time.  The employer was able to offer a second fixed-term contract in November 2020 and the employee commenced her second contract on 02 November 2020.

Conclusion

The employer used a fair and transparent selection method in offering permanent contracts to fixed-term employees who had the longest service.  This method was applied consistently.  To have treated the employee is a manner different to her colleagues would have been unfair.

CA-00040681

Dispute referred under Section 13 of the Industrial Relations Act, 1969.

This dispute concerns the recruitment processes used by the employer.  Having carefully considered the written and oral submissions it is clear that two different recruitment campaigns give rise to this dispute.

Recruitment for Temporary Posts

The employer is a publicly funded statutory organisation.  The headcount in the organisation is overseen by the Department of Transport and approval to recruit employees must be given by that Department and the Department of Public Expenditure and Reform.  In 2018 the employer sought to recruit staff.  Sanction was given for 67 fixed-term 12 to 18 month contracts.  The employer ran a recruitment campaign to fill temporary posts and established a panel from which future appointments would be made.  Successful candidates were placed on the panel based on merit.  There were approximately one hundred candidates on the panel.  The candidates were offered fixed-term contracts starting with candidate number one.  The 67 fixed-term contracts were offered in sequential order.

The employee refers to the Code of Practice for appointments in the Civil and Public Service.  That Code favours appointments made on merit as the way to appoint the best person to any given post.  This is to be achieved through a transparent, competitive recruitment process.  There is no dispute about the establishment of the recruitment panel.  The panel was organised on merit with the best candidate being placed at number one on the panel and thereafter in sequence based on merit.  The candidates who had achieved the best scores were offered the 67 temporary fixed-term posts.

The offer of employment was contingent on successfully completing a seven week initial training programme.  As the employer was recruiting many temporary staff they could not all be trained at the same time.  The employer arranged eight training programmes in different locations.  The training programmes began in September 2018 with the last of the eight programmes beginning on 05 November 2018.  The candidates in most cases were assigned to a training programme near to their home base. 

In my opinion the employer employed temporary staff using a merit based assessment in that there were 67 posts to be filled and the best candidates, selected on merit from the panel of approximately 100, were the people offered the temporary posts.  The fact that the 67 people were offered training in different locations starting on different dates was not relevant to this recruitment campaign as all 67 were offered temporary employment in line with the advertisement.  That is all 67 were offered temporary contracts of 12 to 18 months.  This recruitment campaign was run following the principle of appointment on merit as set out in the Code of Practice for appointments in the Civil and Public Service.

Recruitment for Permanent Posts

No issue would have arisen if all the 67 temporary posts were discontinued at the end of the relevant 12 or 18 month period.  All the 67 candidates had been appointed to the temporary posts from a panel based on merit.

In 2020 several permanent posts became vacant due to retirements.  The employer did not run a recruitment campaign for the permanent posts but rather appointed people to these posts from the list of temporary employees based on seniority.  Seniority is based on the date the employee commenced their initial training programme, that is regarded as the date employment commenced.

Appointment of temporary employees to permanent posts based on their date they commenced employment as a temporary employee is the custom and practice with this employer.  In my opinion it is unusual to find appointments to permanent posts being made on length of service rather through a specific recruitment process, but the employer applied this method of appointment consistently and transparently in line with established custom and practice.

Dispute

This dispute arises from the appointment of temporary employees to permanent posts.  The temporary employees, who had been recruited based on merit, commenced their training at different locations on different dates.  Therefore, their date of commencing employment was in some cases out of sequence with their place on the panel for temporary posts. 

This employee was placed on the training course that took place in Limerick.  That course did not start until 05 November 2018.  If she had been placed on a course in Dublin she might have started training as early as 10 September 2018.  The date the employee commenced training became her date of employment.  Consequently, she commenced employment later than someone who had been placed lower on merit on the panel for temporary posts.  This did not disadvantage the employee in being appointed to a temporary post.  She was employed on an 18 month contract commencing on 05 November 2018 and ending on 01 May 2020.  This was consistent with the advertisement to which she had successfully applied.

The employee feels she was disadvantaged.  She was not appointed to a permanent post and when her contract ended she was not re-employed until November 2020.  While I understand why she feels she was disadvantaged I believe she is incorrect in mixing together two separate recruitment processes.

Appointments to the temporary posts were made on merit.  Out of a panel of approximately one hundred the 67 available temporary posts were offered to the most meritorious candidates on the panel.  The employee applied for a temporary post and was successful in obtaining a temporary 18 month post.  I find no issue with the way recruitment to the temporary posts was managed.  These appointments were made on merit and the best candidates were appointed.  The recruitment process for the temporary posts did not indicate any commitment to anything other than temporary posts.

Appointments to the permanent posts were made in line with the established custom and practice.  That is based on the length of service.  In my opinion it is now unusual to find permanent appointments made based on length of service rather than through a competition where the best person for the post may be selected.  A competition to fill permanent posts would allow the employer to select the best people taking account of qualifications and experience and in the case of existing temporary employees, practical experience gained while working in a temporary post.  However, that is not the existing custom and practice.  The employer in making the appointments to the permanent posts followed the existing custom and practice.  This is a transparent selection method and was applied consistently.

The employee clearly had an expectation and belief that her place on the recruitment panel for a temporary post, based on merit, would be applied when permanent posts became available.  She was incorrect in her belief as the employer used a different selection method for filling temporary and permanent posts.  If the employee had been assigned to a training course at a different location she would have commenced employment at an earlier date and had longer service when permanent post became available.  However, the employer had not given any commitment that a place on the recruitment panel for a temporary post could lead to anything other than a temporary contract of employment.  When permanent posts became available the employer used their established method of filling those posts, length of service.

The employee applied for a temporary post.  She was successful in her application and on merit was employed on a temporary 18 month contract.  She has since been employed on a second temporary contract.  The employer selected the employee based on merit for the temporary post.  A separate selection method was used for the filling of permanent posts which followed the established practice of length of service.  In my opinion it is incorrect to mix the two selection processes together.

Recommendation

The employee applied for a temporary post.  Based on merit she was appointed to a temporary post for 18 months.  That competition was not a selection process for permanent posts which might arise at a future date.  In those circumstances I do not recommend any recompense to the employee.

Several permanent posts did arise in 2020 and the employer used the established selection method of length of service to fill those posts.  That is the custom and practice.  However, in my opinion, while that method of selection is transparent, and was used consistently, it is outdated and does not necessarily guarantee the selection of the best people for the posts.  I recommend that the employer reviews, in consultation with the trade union, this selection method with a view to agreeing that in future selection for permanent posts will made by way of a separate transparent recruitment process based on merit.

CA-00040681

The employee applied for a temporary post.  Based on merit she was appointed to a temporary post for 18 months.  That competition was not a selection process for permanent posts which might arise at a future date.  In those circumstances I do not recommend any recompense to the employee.

Several permanent posts did arise in 2020 and the employer used the established selection method of length of service to fill those posts.  That is the custom and practice.  However, in my opinion, while that method of selection is transparent, and was used consistently, it is outdated and does not necessarily guarantee the selection of the best people for the posts.  I recommend that the employer reviews, in consultation with the trade union, this selection method with a view to agreeing that in future selection for permanent posts will made by way of a separate transparent recruitment process based on merit.

Recruitment

Recruitment based on merit

Recruitment based on length of service